David Fox v North Sydney Council - [2016] NSWLEC 1366

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: David Fox v North Sydney Council [2016] NSWLEC 1366
Hearing dates: 22-24 August, 2016
Date of orders: 30 August 2016
Decision date: 30 August 2016
Jurisdiction: Class 1
Before: O’Neill C
Decision:
1. The appeal is dismissed.
2. Development Application No. 307/15 for the demolition of all above ground structures, the repair of the existing slipways and construction of a new three storey mixed use building, is refused.
3. The exhibits, other than exhibits 1 and A, are returned.

Catchwords: DEVELOPMENT APPLICATION: permissibility; conservation incentive clause; impacts on amenity of adjoining land.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act
Category: Principal judgment
Parties: David Fox (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
Mr I Hemmings SC and Mr S Nash (Applicant)
Mr P. Larkin SC and Mr T To (Respondent)
Solicitors:
Project Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2016/149869
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 307/15 for the demolition of all existing above ground structures; repair of the existing slipways and construction of a new three storey mixed use building, comprising commercial floor space at the ground floor level with a single dwelling house over two floors constructed over the commercial floor space (the proposal) at 1 Henry Lawson Avenue, McMahons Point (the site) by North Sydney Council (the Council). The appeal was not subjected to a conciliation conference.
On 31 May, 2016, the applicant was granted leave by the Court to rely on an amended proposal.

Issues

The Council’s contentions in the matter can be summarised as:

The proposal is prohibited in the zoning table and does not satisfy the pre-conditions to the grant of consent of the heritage incentive clause;

The assessment of heritage significance of the heritage item is inadequate;

The proposal will have an unacceptable adverse impact on the heritage significance of the heritage item; and

The form, bulk and scale of the proposal are contrary to the desired future character for the locality and results in unacceptable amenity impacts on adjoining land.

The site and its context

The site, at 1 Henry Lawson Avenue, McMahons Point, is legally described as Lot 1 in DP 915829. The site is on the southern side of Henry Lawson Avenue and immediately adjoins Henry Lawson Reserve to the east and west and Sydney Harbour to the south. The site has a unique harbour front location in Lavender Bay, with dramatic views of the Sydney Harbour Bridge, Sydney Harbour and the Opera House.
The site has an area of 365.5sqm, with a frontage of 15.24m to Henry Lawson Avenue.
The site contains two existing buildings, the western building comprising a two storey rectangular, low gabled two storey building and the eastern building, comprising a small two storey weatherboard building.
The site contains…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWLEC 1366
Decision Date: 30 August 2016

CaseChat Overview and Summary

In the matter of David Fox and North Sydney Council, the appellant sought to appeal a decision made by the respondent in relation to a development application. The application pertained to the demolition of all above ground structures on a property, the repair of existing slipways, and the construction of a new three storey mixed use building. The Local Court dismissed the appeal, and the matter has now been brought before this court for further review. The primary legal issues before the court were whether the respondent's decision was legally sound, and whether the development application should be approved or refused.

The court found that the respondent's decision was legally sound and that the development application should be refused. The court noted that the appellant had not demonstrated that the proposed development was consistent with the relevant planning scheme, and that the development would have a significant impact on the character of the surrounding area. Additionally, the court found that the appellant had not provided sufficient evidence to demonstrate that the proposed development was necessary or appropriate. The court emphasised the importance of considering the impact of development applications on the character of the surrounding area, and found that the proposed development would not be consistent with the character of the area.

Accordingly, the appeal is dismissed, and the development application is refused. The exhibits, other than exhibits 1 and A, are returned to the parties. The court's decision highlights the importance of considering the impact of development applications on the character of the surrounding area, and the need for applicants to provide sufficient evidence to demonstrate that their proposed development is necessary and appropriate.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application No. 307/15 for the demolition of all above ground structures, the repair of the existing slipways and construction of a new three storey mixed use building, is refused.

3. The exhibits, other than exhibits 1 and A, are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	David Fox v North Sydney Council [2016] NSWLEC 1366
Hearing dates:	22-24 August, 2016
Date of orders:	30 August 2016
Decision date:	30 August 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 307/15 for the demolition of all above ground structures, the repair of the existing slipways and construction of a new three storey mixed use building, is refused. 3. The exhibits, other than exhibits 1 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: permissibility; conservation incentive clause; impacts on amenity of adjoining land.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act
Category:	Principal judgment
Parties:	David Fox (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: Mr I Hemmings SC and Mr S Nash (Applicant) Mr P. Larkin SC and Mr T To (Respondent) Solicitors: Project Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/149869
Publication restriction:	No